Troubling Immigration Rules, Including End of H-4 EAD, on Trump’s Rulemaking Agenda

The Office of Information and Regulatory Affairs (OIRA), which is part of the Office of Management and Budget (OMB), periodically publishes an updated list of agency rulemaking activity. This list provides some basic information on regulations being worked on by various government agencies. The agency rule list for fall 2017 was recently released, and it includes a number of unsettling rules under consideration, such as the elimination of the program that allows a qualifying H-4 spouse to apply for an employment authorization document (EAD).

Significance of Agenda Items and Timelines

The fact that an item is on the agency rule list does not necessarily mean it will ever become a final regulation. There are a number of steps that it must go through, and it is not unusual for a rule to be listed on the agenda, but to never get enacted. Further, while an estimated time period for publishing a proposed or final rule is provided, these are merely estimates, and are subject to change.

For the rule to move forward, it typically must first be published as a proposed rule in the Federal Register. An opportunity then is provided for the public to submit comments to the relevant agency. The comments next must be reviewed and considered. The rule does not go into effect until it is published as a final rule in the Federal Register. This process ordinarily takes at least a few months, and sometimes considerably longer.

Brief Summary of Key Immigration Rules Being Considered

Eliminating H-4 EAD Program

As reported in the MurthyDotCom NewsBrief, H-4 EAD Program may be in Jeopardy (20.Nov.2017), the Trump Administration appears determined to end the H-4 EAD program. The current anticipated timetable for issuing this proposed rule is February 2018.

Toughen H1B Standards

This proposed rule, entitled Strengthening the H-1B Nonimmigrant Visa Classification Program, aims to “revise the definition of specialty occupation” and “revise the definition of employment and employer-employee relationship.” No additional details are provided, but this certainly is a cause for alarm for H1B employers and workers. The anticipated timeline for issuing the proposed rule is October 2018.

Changes to F-1/M-1 Practical Training

A rule under consideration, entitled Practical Training Reform seeks to make changes to the programs allowing curricular practical training (CPT) and optional practical training (OPT) available to many F-1 and M-1 students. No specifics are provided, but the brief indicates that the changes would be “… to improve protections of U.S. workers who may be negatively impacted by employment of nonimmigrant students on F and M visas. The rule is a comprehensive reform of practical training options intended to reduce fraud and abuse.” The proposed rule is expected to be published in October 2018.

Major Changes to Employment-Based, Fifth Preference (EB5) Immigrant Investor Program

In January 2017, a proposed rule, entitled EB5 Immigrant Investor Program Modernization, was published in the Federal Register. This version would have implemented massive increases to the minimum investment amounts required by EB5 investors, in addition to several other changes. The final rule is currently scheduled to be published in February 2018. The hope is that, if the rule is published, the investment requirements will not be increased in such a draconian fashion.


Given the Trump Administration’s hostility toward U.S. immigration programs, it is hard to imagine that any proposed regulation will be done in a manner that will improve the plight of immigrants. The effort to repeal the H-4 EAD program seems especially mean-spirited. Moreover, these restrictions will harm U.S. competitiveness in the global market, as entrepreneurs, who might otherwise want to start businesses here, look elsewhere because of the increasing hostility toward immigrants. Many of the best-known and fastest growing U.S. companies were founded by immigrants. Additionally, some sectors of the U.S. economy desperately need foreign workers to fill jobs that will otherwise remain vacant.

Murthy Law Firm will continue to closely follow regulatory developments that might affect our clients. As soon as any new details are provided, MurthyDotCom will post an update. Subscribe to the MurthyBulletin to have the information delivered to your inbox each week.


Copyright © 2017, MURTHY LAW FIRM. All Rights Reserved

Disclaimer: The information provided here is of a general nature and may not apply to any specific or particular circumstance. It is not to be construed as legal advice nor presumed indefinitely up to date.